TAMMY SCHULTZ, Applicant
QUAD GRAPHICS INC, Employer
SENTRY INSURANCE A MUTUAL CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on April 5, 2007. Quad Graphics, Inc. and Sentry Insurance Company (Respondents) also submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order. At issue are whether or not on May 17, 2005, the applicant sustained an injury arising out of and in the course of his employment with the employer; and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter, and hereby modifies and affirms the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is December 17, 1972, began her employment as a production worker for the employer in July 1997. The job involved repetitive lifting, twisting, and bending. She was working the third shift at 2:30 a.m. on May 17, 2005, when she hurt her lower back while pulling a hand jack out of a skid. The pain radiated down into her buttocks and right leg. She did not complete an injury report that day because she hoped it would turn out to be a minor injury, and because she believed the employer wanted all employees to avoid work injury claims.
The applicant completed her shift and sought treatment at Quad Medical Clinic at 8:30 a.m. on May 17, 2005. The history taken was of ". . . recurrent back pain with radiation down the back of her left leg . . . going on for a few weeks. It keeps her awake at night." Dr. Cynthia Mason diagnosed sciatica and prescribed medication. The applicant credibly testified that even though the clinic notes do not record it, she did tell Dr. Mason about the work incident. The applicant told the employer she was in too much pain to work the following shift, and when she woke up the morning of May 18, 2005, she was in such severe pain that she could not get out of bed. She eventually did get up and went to a chiropractor, Dr. Jeffrey Oles. Dr. Oles' clinic note of May 18, 2005, includes a history of the work injury as the applicant has described it. The applicant did answer "no" to a form question asking whether or not the visit to Dr. Oles was for a work-related injury, but she did this because she knew the employer did not like work accidents. When she later saw a physician who told her she had a serious, work-related problem, she reported it as a work injury.
The physician she later saw was Dr. Thomas Perlewitz, an orthopedic surgeon. Her first visit to Dr. Perlewitz was on June 13, 2005, and his clinic note records
". . . insidious onset of severe low back pain on the morning of May 18, 2005." Dr. Perlewitz recounted that a lumbar MRI ordered by Dr. Oles on June 7, 2005, showed a large central disc herniation at L4-5. Dr. Perlewitz' note of June 23, 2005, recounts the history of the work incident. On September 21, 2005, Dr. Perlewitz performed an anterior lumbar diskectomy and fusion at L4-5. The applicant remained in the hospital and on September 23, 2005, Dr. Perlewitz performed a posterior lumbar decompression and fusion also at L4-5, with insertion of instrumentation. The surgery has not had a good result. Dr. Perlewitz completed a WKC-16-B dated December 9, 2005, in which he checked the aggravated/accelerated causation box and indicated it was too early to determine permanency. The applicant underwent injections and a lumbar discography for diagnostic purposes on June 26, 2006. The discography did not reveal anything significant. On July 31, 2006, Dr. Perlewitz completed a form assessing permanent sedentary restrictions but indicating that it was too soon to assess permanent partial disability.
At the respondents' request, Dr. Charles Klein examined the applicant on March 21, 2006. His diagnosis was L4-5 degenerative disc disease with a disc herniation. He opined:
"I think that the degeneration was progressing and she was in the process of herniating the L4-5 disc when she strained the back during the work shift on May 16, 2005. The work incident, as she describes it, could have aggravated the underlying degenerative process at the L4-5 vertebra but I do not find enough evidence to show that the work incident caused acceleration beyond normal progression. Rather, her course illustrates the normal progression that one would expect with a degenerating disc."
Regardless of causation, Dr. Klein assessed 15 percent permanent partial disability with a lifting restriction of 25 pounds.
Causation
With regard to the issue of causation, the commission agrees with the administrative law judge that Dr. Perlewitz' opinion is credible. Respondents incorrectly argue that Dr. Perlewitz' clinic note of June 23, 2005, was the first mention in the medical records of the alleged work incident. In fact, the history form completed by the applicant for Dr. Oles on May 18, 2005, does describe the work incident. It is credible that the applicant was hoping the work injury would heal itself, and that she was not emphasizing the incident to her medical providers because she believed the employer hoped its employees would avoid work injuries. The employer acknowledged that one of the applicant's co-workers, Carolyn Crenshaw, completed a written statement indicating that she saw the incident occur as described by the applicant on May 17, 2005. Although Crenshaw indicated that she did not know the incident had resulted in a work injury, the fact that she witnessed an incident consistent with the applicant's testimony supports the fact that the work injury occurred. As noted by the administrative law judge, in the weeks and months prior to May 17, 2005, the applicant was able to perform her normal work duties. Shortly after the work incident, a lumbar disc herniation was objectively identified and resulted in lumbar surgery. While the applicant should have formally reported the work injury to her employer as soon as it occurred, she did file a formal report when she realized it would not resolve on its own.
Permanent Functional Disability
The parties agreed that this matter should be left interlocutory with respect to the issues of vocational retraining and loss of earning capacity. However, there was no agreement to leave the order interlocutory with respect to the issue of permanent functional disability, and the administrative law judge's decision should have made findings regarding that issue. The applicant asserts that she underwent two separate fusion procedures, one on September 21, 2005, and the other on September 23, 2005, and should therefore receive a minimum of 20 percent permanent functional disability pursuant to Wis. Admin. Code ch. DWD 80.32(11). Respondents assert that because the administrative code refers to minimum permanent disability percentages "per level," and because Dr. Perlewitz only operated on one vertebral level, the minimum percentage for a laminectomy/fusion procedure (10 percent) is applicable. (1) Alternatively, respondents assert that the surgery Dr. Perlewitz performed constituted only one fusion procedure.
The commission rejects respondents' "per level" argument, which is inconsistent with the directive and the intent of the administrative code to award the assigned minimum percentage of permanent disability for "every surgical procedure." Multiple surgical procedures are routinely performed at a single vertebral level due to lack of success with the earlier procedure or procedures. The administrative code, as well as commission and court precedent, have always awarded the minimum percentage for each such surgical procedure. Each such procedure has its own effects on the individual.
However, the commission finds that in the applicant's case only one surgical procedure was performed at the L4-5 level. As Dr. Perlewitz' own hospital discharge summary states, the surgical procedure performed was:
Anteroposterior lumbar fusion, with instrumentation L4-L5, staged procedure."
Dr. Perlewitz intended from the outset to perform an anterior/posterior fusion at L4-5. He scheduled the two stages of this surgical procedure on two separate days one day apart from each other, but even he describes it as one fusion. Accordingly, the applicant is entitled to the 15 permanent functional disability assessed by Dr. Klein, but not to the 20 percent claimed. Of course, the order remains interlocutory with respect to the issues of vocational rehabilitation and loss of earning capacity.
The applicant is entitled to temporary total disability for the period of May 17, 2005 through July 5, 2006, both dates inclusive, totaling $19,382.42. Twenty percent of this award, or $3,876.49, shall be paid to the applicant's attorney as his fee, together with $64.50 in costs. This leaves net compensation due the applicant for temporary total disability in the amount of $15,441.43.
The 15 percent permanent functional disability amounts to 150 weeks of compensation at the applicable rate of $242.00 per week, for a total of $36,300.00. As of November 19, 2007, $17,343.33 in permanent functional disability will be accrued. The applicant's attorney is also entitled to a 20 percent fee against the permanent functional disability award, which after subtraction of an interest credit in the amount of $195.35, leaves a present value fee of $7,064.65.
Reasonably required medical expenses are also due as set forth below in the commission's Interlocutory Order. Respondents may take credit against this order for any previous payment of compensation made in conjunction with the applicant's claim.
In accordance with Dr. Perlewitz' opinion, jurisdiction is reserved with respect to the possibility of future medical treatment and/or disability, as well as with respect to the issues of vocational retraining and loss of earning capacity.
NOW, THEREFORE, this
Beginning on December 19, 2007, and continuing monthly thereafter, respondents shall additionally pay to the applicant the sum of One thousand forty-eight dollars and sixty-seven cents ($1,048.67), until the currently-unaccrued permanent functional disability has been paid in the total amount of Fifteen thousand one hundred sixty-five dollars and thirty-three cents ($15,165.33).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed November 15, 2007
schulta . wpr : 185 : 8 ND §§ 5.18 5.24
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission modified the administrative law judge's order to award permanent functional disability. There is no basis for denying the immediate award of that compensation.
cc:
Attorney Charles F. Domer
Attorney Matthew C. Siderits
Appealed to Circuit Court.
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